The Events of 11 September 2001 and the Right to the Truth Elias Davidsson* Abstract On 11 September 2001 approximately 3,000 people1 were killed in the United States in what was variously designated as a terrorist attack, an act of war or a crime against humanity. It was also a gross violation of human rights. Yet, the truth on this event remains elusive. No person has been convicted for this crime. Part I outlines the moral and legal foundations for the right to the truth and the obligations of states to adequately investigate human rights violations. Part II examines whether the investigation of the events of September 2001 has been effective in terms of promptness, thoroughness, impartiality, independence and transparency. The author concludes that the investigation of this mass murder has been grossly deficient both in terms of means and results: It failed to establish the identity of the perpetrators, the tools of the crime and the circumstances of death of most victims. Introduction Since 11 September 2001 the human rights community has faced a new challenge, namely the assault on individual freedoms in Western democracies in the name of the ‘war on terror’. Every day governments introduce new challenges to individual freedoms, including police powers to monitor private communications, mass surveillance methods and broadened search and detention powers.2 While the human rights community has acted diligently and courageously in exposing this assault on individual liberties and the violations ensuing from, or justified by, the ‘war on terror’, others have began questioning the very justification of that ‘war’.3 Since approximately 2003 a new constituency has emerged, particularly in the United States4 and more recently in Western Europe,5 that places the struggle for the truth on the events of 11 September 2001 (9/11) at the centre of their occupations. Most of those who participate in this struggle are not familiar with human rights concepts but act intuitively in the spirit of human rights values. They represent natural allies of the human rights community and a formidable potential of good will to the furtherance of the human rights cause. The events of 9/11 have been generally considered as a terrorist act or as an act of war. Yet, from the perspective of human rights, they constitute gross violations of the right to life or

* Independent researcher in the fields of human rights and international law living in Reykjavik, Iceland. The author wishes to thank Pétur Knútsson and Þorbjörn Broddason of the University of Iceland, for their valuable observations and suggestions. The author can be reached at edavid [at] simnet.is

1 11 September 2001 victims’ database. Available at

http://www.september11victims.com/september11victims 2 Collection of writings and documents under the heading ‘The Police State as the emerging form of

governance’. Available at http://www.aldeilis.net/english/index.php?option=content&task=section&id=21&Itemid=135

3 Russel Dean Covey, ‘Why 9/11 may or may not constitute war, war crimes’, 25 September 2001. Available at http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=1045&Itemid=141; Rohan Pearce, ‘Is al Qaeda really a “threat”?’, Green Left Weekly (UK), 10 September 2003; Elias Davidsson, ‘The “war on terrorism” - a double fraud on humanity’, June 2006. Available at http://www.aldeilis.net/english/images/stories/911/waronterror2.pdf

4 See http://en.wikipedia.org/wiki/Truther 5 See www.911truth.eu

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even a crime against humanity. It is the duty of states to investigate such violations, establish the truth on these violations and bring those responsible to justice. Impunity arises from a failure by States to meet their obligations to investigate violations.6 To this date, no person has been brought to trial for complicity in the mass murder of 9/11. This fact alone warrants an examination of the investigation of these gross violations. Thanks to the jurisprudence developed by human rights courts, and particularly that of the European Court of Human Rights (ECHR) and of the Inter-American Court of Human Rights (IACtHR), standards of adequacy permit the assessment of that investigation. Part I: The Legal and Moral Basis for the Right to the Truth 1. The right to the Truth as a Democratic Right The right to the truth regarding the circumstances in which offences against the public order and human rights have been committed is linked to the principle of democracy. The fact that a modern state possesses vast powers, including a monopoly on the use of force to repress crime and enforce the law, requires the existence of effective safeguards against potential abuse of state power. Accountability, of which the transparency of official conduct is an essential feature, aims to safeguard the public against arbitrary rule and the potential for corrupt and unlawful practices by public officials. Thus, the right to the truth, along the right to public trials and the right of access to government information, may be regarded as three types of accountability rights in a democratic society.

Although international human rights instruments do not explicitly refer to the right to the truth, this right has been referred to by human rights courts and in documents adopted by various bodies of the United Nations.7 This right is also regarded as implicit in existing provisions of human rights treaties,8 such as Article 8, 11, 14 and 25 of the American Convention of Human Rights.9

In 2005, the UN Commission on Human Rights (UNCHR) adopted an Updated Set of

principles to combat impunity. The first subset of principles is entitled the Right to Know and includes the following principles10:

Principle 2: The inalienable right to the truth Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations ... Principle 5: Guarantees to give effect to the right to know States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. Appropriate

6 Updated Set of principles for the protection and promotion of human rights through action to combat

impunity, Commission on Human Rights, 8 February 2005, UN Doc. No. E/CN.4/2005/102/Add.1, Principle I: General Obligations.

7 For an overview of references to the right to the truth, see Yasmin Naqvi, ‘The right to the truth in international law: fact or fiction?’ (2006) 88 International Review of the Red Cross 862

8 Bámaca-Velásquez v Guatemala, IACtHR, Judgment of 25 November 2000, Series C 70, Separate Concurring Opinion of Judge Hernán Salgado Pesantes

9 American Convention of Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978

10 Updated Set of principles to combat impunity, supra n. 6

3 measures to ensure this right may include non-judicial processes that complement the role of the judiciary. Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.

The above principles reflect states’ recognition of societies’ right to know the truth about past grave violations to human rights. The UNCHR also also requested that the Office of the High Commissioner for Human Rights prepare a study on the right to the truth, ‘including information on the basis, scope, and content of the right under international law’.11 The repeated invocation of this right by UN human rights organs and regional human rights courts indicates that it serves a purpose no other concept has yet fulfilled.

Truth is – philosophically – a tricky concept. In the present context, truth should be regarded as a social value rather than a metaphysical idea. The present study is based on the premise that the right to the truth is neither a fictional notion nor a frivolous demand, but a procedural and, arguably, legal right that serves an unique social purpose, particularly in relation to past gross violations of human rights. 2. The Right to the Truth as a Form of Individual Reparation According to Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), victims of human rights violations are entitled to an ‘effective remedy’ including the right to learn the truth on these violations.

The United Nations adopted in 1989 the U.N. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions12 (UN Principles) and in 1991 a Manual on the implementation of these principles.13 According to paragraph 9 of the UN Principles: ‘the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim.’

In 2005, the UN General Assembly affirmed the duty of states to provide victims of

human rights violations with ‘full and effective reparation ...which include[s] ...where applicable ...[v]erification of the facts and full and public disclosure of the truth’ ...and ‘[i]nclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.’ 14

The Inter-American Court for the Protection of Human Rights (IACtHR) has through its jurisprudence given substance to the concept of the right to the truth: ‘[T]he right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the events that violated human rights and the corresponding responsibilities from the competent organs of the State, through the investigation and prosecution that are established in Articles 8 and 25

11 Cited by Naqvi, supra n. 7 at 248 12 ECOSOC Res. 1989/65, UN Principles on the Effective Prevention and Investigation of Extra-Legal,

Arbitrary and Summary Executions, 24 May 1989 13 Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary

Executions, U.N. Doc. E/ST/CSDHA/.12 (1991) 14 GA Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims

of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 16 December 2005, Articles 18 and 22

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of the Convention.’15 In 1998 the Inter-American Commission on Human Rights has for first time recognized that the right to the truth belongs to members of society at large as well as to the families of victims of human rights violations.16 A. The Duty to Investigate In order to ascertain the truth, a human rights violation must be investigated. The Basic Principles (2005) set out the specific obligation to investigate violations in the context of the overall obligation to ensure respect for human rights: ‘The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law ...includes, inter alia, the duty to ...[i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.’17

Before the adoption of the Basic Principles (2005), the UN Human Rights Committee

(UNHRC), in its General Comment no. 31, pointed out that states are under the duty to protect individuals subject to their jurisdiction

not just against violations of the [ICCPR] by [their] agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights ... There may be circumstances in which a failure to ensure Covenant rights ...would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.18

The ‘Minnesota Protocol’, which comprises Part III of the United Nations Manual on the

Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,19 lists desirable procedures of an inquiry into the circumstances surrounding a suspicious death. These include, inter alia, specific tasks to be accomplished at the crime scene, the processing of evidence, avenues of investigation and identification and interviews of witnesses. The ‘Minnesota Protocol’ also provides a guideline for the establishment of independent commissions of inquiry and the performance of autopsies.

While states possess wide discretionary powers to decide when an investigation of a violation of human rights is warranted and how the investigation is conducted, the principle of good faith provides, along with other criteria, a tool to gauge the adequacy of such an investigation. B. Standards of Investigation While states are under the obligation to investigate violations of human rights and international humanitarian law, they sometimes attempt to avoid investigations, which may 15 Chumbipuma Aguirre et al. v Peru (Barrios Altos Case), IACtHR, Judgment of 14 March 2001, para. 48 16 The Right to the Truth. Office of the Special Rapporteur for Freedom of Expression, IACHR, Available

at http://www.cidh.oas.org/Relatoria/showarticle.asp?artID=156&lID=1 17 UNCHR Res. 2005/35, Basic Principles and Guidelines on the Right to a Remedy and Reparation for

Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. E/CN.4/2005/ L.10/Add.11 (19 April 2005), Article 3; also GA Res. 60/147, supra n. 14

18 UNHRC, General Comment No. 31. Nature of the General Legal Obligation Imposed on States Parties to the Covenant. UN Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004) para. 8

19 United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Part III, ‘Minnesota Protocol’, U.N. Doc. E/ST/CSDHA/. 12 (1991)

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embarrass or implicate high officials. In order to cover up official complicity states sometimes stage an investigation designed to fail. The IACtHR explicitly warned against this possibility: ‘[T]he State has the duty to commence ex officio and without delay, a serious, fair, and effective investigation which is not undertaken as a mere formality condemned in advance to be fruitless.’20

The notion that failure to effectively investigate arbitrary killings could itself be a violation of human rights has been confirmed in numerous judgments by the ECHR. In these judgments the court addressed five criteria that permit the evaluation of the effectiveness of an investigation, namely: promptness, thoroughness, impartiality, independence and transparency.

(i) Effectiveness of investigations The requirement of effectiveness of investigations has been addressed by the ECHR in numerous court judgments. A review of these judgments reveals that the Court used the expression ‘effective investigation’ to mean the adequacy of an investigation. The Court considered that ‘the nature and degree of scrutiny which satisfies the minimum threshold of [an] investigation's effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria.’21 In determining whether effective investigations of alleged violations of human rights had taken place, the Court examined whether these investigations had been prompt, thorough, impartial, independent and sufficiently transparent. While human rights courts generally avoid to imply that ineffective investigations of human rights violations represent deliberate obstruction or a cover-up by the state, the ECHR expressed its view in one case that ‘the astonishing ineffectiveness of the prosecuting authorities ...can only be qualified as acquiescence in the events’.22 The ECHR has also considered that a violation by a government of the right to life can be inferred from the failure by the government to provide ‘a plausible explanation ...as to the reasons why indispensable acts of investigation have not been performed.’23 (ii) Promptness of investigations The duty of an investigation’s promptness had also been addressed by the ECHR in numerous judgments. The necessity of promptly investigating the use of lethal force ‘may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.’24 The passage of time ‘will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family.’25 A substantial delay in

20 Ximenes-Lopes v Brazil, IACtHR, Judgment of 4 July 2006, para. 148 21 Toteva v Bulgaria, ECHR, Application no. 42027/98, Judgment of 19 May 2004, para. 80 22 Musayev and Others v Russia, ECHR, Applications nos. 57941/00, 58699/00 and 60403/00, Judgment of

26 July 2007, para. 164 23 Toteva, supra n. 21, para. 82 24 Adali v Turkey, ECHR, Application no. 38187/97, Judgment of 31 March 2005, para. 224 25 Trubnikov v Russia, Application no. 49790/99, Judgment of 5 July 2005, para. 92

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the investigation may constitute ‘a breach of the obligation to exercise exemplary diligence and promptness.’26 (iii) Thoroughness of investigations According to paragraph 9 of the UN Principles:

There shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases in which complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.... The Purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice, which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses...

In the case-law of the ECHR we find that that the lack of thoroughness (or effectiveness) was inferred from omissions by the state, such as failure by the investigating authorities to take reasonable steps to secure evidence;27 ignorance of obvious evidence (failure to ‘connect the dots’);28 failure to collect all the evidence that could have clarified the sequence of events;29 failure to report troubling facts;30 failure to interrogate certain people or to ask certain questions in interrogations;31 failure to ascertain possible eye-witnesses and failing to search for corroborating evidence;32 failure to ascertain whether certain reported documents in fact existed;33 failure to clarify important inconsistencies;34 failure to consider alternative hypotheses for unnatural death;35 lack of explanations for irregularities;36 failure to preserve evidence at the scene (of the crime) and taking all relevant measurements;37 and failure to inquire about motives.38 The aforementioned examples reveal the large range of means available to, and used by, states to undermine investigations into violations of the right to life. (iv) Independence of investigations The UN Human Rights Committee emphasizes the need for ‘administrative mechanisms’ to ‘investigate allegations of violations (...) through independent and impartial bodies.’39

The UN Principles specify that

26 Ibid. 27 Ahmet Özkan and Others v Turkey, ECHR, Application no. 21689/93, Judgment of 6 April 2004, para.

312 28 Ülkü Ekinci v Turkey, ECHR, Application no. 27602/95, Judgment of 16 July 2002 29 Nachova v Bulgaria, ECHR, Applications nos. 43577/98 and 43579/98, Judgment of 26 February 2004,

para. 138 30 Ibid. 31 Toteva, supra n. 21, para. 79 32 Aydin v Turkey, ECHR, Applicaton no. 57/1996/676/866, Judgment of 25 September 1997, para. 106 33 Buldan v Turkey, ECHR, Application no. 28298/95, Judgment of 20 April 2004, para. 86 34 Sergey Shevchenko v Ukraine, ECHR, Application no. 32478/02, Judgment of 4 April 2006, para. 67;

Nachova, supra n. 29, para. 140 35 Ognyanova and Choban v Bulgaria, ECHR, Application no. 46317/99, Judgment of 23 February 2006,

paras. 109-112 36 Anguelova v Bulgaria, ECHR, Application no. 38361/97, Judgment of 13 June 2002, paras. 142-145 37 Nachova supra n. 29, para. 132 38 Adali v Turkey, supra n. 24, para. 231 39 Human Rights Committee, General Comment no. 31, The Nature of the General Legal Obligation

Imposed on States Parties to the Covenant, 29 March 2004, para. 15(d)

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[i]n cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.40

Those potentially implicated in extra-legal, arbitrary or summary executions shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as over those conducting investigations.41

The UN Principles mention particularly the necessity to ensure that those conducting the

autopsy be independent from ‘any potentially implicated persons or organizations or entities.’42

The ECHR repeatedly mentioned the necessity ‘for the persons responsible for and

carrying out the investigation to be independent from those implicated in the events’.43 The Court added: ‘This means not only a lack of hierarchical or institutional connection but also a practical independence.’44 (v) Impartiality of investigations Impartiality requires that investigators examine with an open mind all relevant evidence, including evidence that contradicts their ‘firm conviction’45 and include in the scope of their investigation the possibility of official involvement in the crime, particularly when they are put on notice about suspicious activities by official entities.46 In order to ensure the impartiality of an investigation, witnesses ‘shall be protected from ...any ...form of intimidation’47, particularly by state officials. (vi) Transparency of investigations According to paragraph 16 of the UN Principles ‘[f]amilies of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence.’48

The reporting requirements of an investigation are also spelled out in the UN Principles:

40 UN Principles, para. 11, (emphasis added), supra n. 12 41 UN Principles, para. 15, supra n. 12 42 UN Principles, para. 14, supra n. 12 43 Adali, supra n. 24, para. 222 44 Ibid. 45 Kaya v Turkey, ECHR, Application no. 158/1996/777/978), Judgment of 19 February 1998, para. 90;

Semsi Önen v Turkey, ECHR, Application no. 22876/93, Judgment of 14 May 2002, para. 88 46 Tepe v Turkey, ECHR, Application no. 27244/95, Judgment of 9 May 2003, paras. 179-180; Buldan supra

n. 33, para. 86; Finucane v United Kingdom, ECHR, Application no. 29178/95, Judgment of 1 July 2003; Kaya, supra n. 45, para. 88, Semsi Önen, supra n. 45

47 UN Principles, para. 15, supra n. 12 48 UN Principles, para. 16, supra n. 12

8 A written report shall be made within a reasonable period of time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. The report shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The Government shall, within a reasonable period of time, either reply to the report of the investigation, or indicate the steps to be taken in response to it.49

The ECHR explicitly related the need for transparency of investigations to the democratic

right of official accountability:

Remedies must be effective in practice, not just in theory, with a sufficient element of public scrutiny to ensure true accountability. In particular, alleged violations of the right to life deserve the most careful scrutiny. Where events lie wholly or largely within exclusive knowledge of the authorities...strong presumptions of fact will arise in respect of injuries and death, which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.50

Here is one example of the reasoning by the ECHR regarding the lack of transparency in an investigation:

The Court notes ...that throughout the investigation the applicant and the rest of the family were entirely excluded from the proceedings. Contrary to the usual practice under national law, they were not granted the official status of victims in criminal proceedings, a procedural role which would have entitled them to intervene during the course of the investigation. Even assuming that the family’s participation could have been secured otherwise, this was not the case here. The terms of their access to the file were not defined. They were never informed or consulted about any proposed evidence or witnesses, including the appointment of posthumous psychological and psychiatric experts, so they could not take part in instructing the experts. The applicant did not receive any information about the progress of the investigation and, when it was discontinued on 10 October 2002, he was only notified five months later.51

Summary of Part I States bear an obligation to establish the truth on gross violations of human rights committed within their jurisdiction. Moreover, internationally adopted standards exist which permit an objective assessment of the adequacy of official investigations into alleged gross violations of human rights. There exist, however, impediments to the right to the truth other than those resulting from inadequate investigations. Such impediments include: compensation schemes designed to prevent judicial discovery procedures52, plea bargains53, statutes of limitations,

49 UN Principles, para. 17, supra n. 12 50 Hugh Jordan v The United Kingdom, ECHR, Application No. 24746/94, Judgment, 4 May 2001, para.

109 51 Trubnikov, supra n. 25, para. 93 52 Tim Harper, ‘Families Sue U.S., Reject 9/11 “Bribe”’, Toronto Star, 23 December 2004. Available at

http://www.commondreams.org/headlines03/1223-02.htm; 53 See, for example, Ilana Mercer, ‘Truth obscured in Johnny Jihad's plea bargain’, WorldNetDaily, 9

October 2002. Available at http://www.wnd.com/news/article.asp?ARTICLE_ID=29220; Scott Horton, ‘The Plea Bargain of David Hicks’, Harper’s Magazine, 2 April 2007. Available at http://www.harpers.org/archive/2007/04/horton-plea-bargain-hicks; George Jonas, ‘Truth is the first casualty of plea bargains’, National Post, 29 May 2007. Available at http://www.georgejonas.com/recent_writing.cfm?id=538

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State and official immunities, prohibitions of retrospective application of criminal law even when the conduct was criminal under international law at the time it occurred, political interference with decisions to investigate and prosecute and stipulations by which defendants and prosecutors agree to recognize certain facts, even if these facts are untrue or unproven. These additional impediments to the truth will not be examined in this article, although some of these have been used to prevent the establishment of the truth on 9/11.

In Part II of this study, we will examine whether and to what extent the United States government fulfilled its international obligations to investigate the gross violations of human rights committed on 11 September 2001 and establish the truth on these events. Part II Establishing the Truth on the Events of 11 September 2001

The events of 11 September 2001 (‘9/11’) were a gross violation of the right to life of approximately 3,000 human beings. It follows that the United States, as state party to the International Covenant of Civil and Political Rights, is under the obligation to adequately investigate this gross violation and secure the prosecution and punishment of the violators. In order to conform to this obligation, the investigation of such a gross violation must be carried promptly, effectively, thoroughly, impartially and with an adequate degree of transparency. The expected goals of a murder investigation is (a) to positively identify the victims; (b) to determine the manner, cause, location and time of death; and (c) to identify those responsible for the death, including their accomplices.

In this Part we examine the investigation of this gross violation of human rights. In order not to encumber the terminology, we will in this section refer to the events of 9/11 as a crime.

It is true that violations by the United States of human rights treaties to which it is party,

such as the failure to investigate violations committed within its jurisdiction, are not enforceable against the United States in any international court. The lack of international enforcement does not, however, void the international responsibility of the United States for its violations of obligations under international law54 or its moral responsibility to establish the truth on human rights violations. Terminology (1) When referring to the National Commission on Terrorist Attacks Upon the United States55, we will use the shortcut ‘the 9/11 Commission’. (2) When referring to the persons designated by the US authorities as the perpetrators of the crime of 9/11, we will designate them as the ‘suspects’ because their guilt has not been formally established. 1. The Facts On September 11, 2001, the entire world witnessed on television the impact of an aircraft crashing on the South Tower of the World Trade Center in New York, the burning of the Twin Towers, their subsequent disintegration and the sequels of explosions at the Pentagon and near Shanksville, Pennsylvania. Television and other media provided non-stop coverage

54 Article 2 of the Draft articles on Responsibility of States for internationally wrongful acts, adopted by

the International Law Commission at its fifty-third session (2001). Available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf

55 Available at http://www.9-11commission.gov/

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about rescue efforts and presented live testimonies of survivors, eyewitnesses, rescue workers, fire fighters and law enforcement personnel. In addition to what was shown live on television, numerous people witnessed the events. It was logical to conclude after seeing a second aircraft impacting the World Trade Center that this was no accident, but a deliberate attack aimed to destroy and kill. 2. The Allegations Approximately 20 minutes after the apparent aircraft crash on the South Tower of the World Trade Center, before anyone expected further attacks, President George W. Bush emerged from a school class in Florida where he listened calmly to children read a story about a pet goat, and announced that the United States was under attack.56 In his TV address he said: ‘today we've had a national tragedy. Two airplanes have crashed into the World Trade Centre in an apparent terrorist attack on our country.’57 Twenty-four hours later the US Congress declared unanimously: (a) That the events of the previous day had been ‘attacks against’ the United States; (b) That terrorists had ‘hijacked and destroyed’ four civilian aircraft; (c) That the attacks ‘destroyed both towers of the World Trade Center’; and (d) That the attacks clearly were intended ‘to intimidate our Nation and weaken its resolve.’58 The evidence available to the Congress at that time about the manner in which the crime had been committed was hardly sufficient for the above findings, and did not appear sufficiently reliable to allow the conclusion to be drawn that foreign terrorists had been responsible for the crime.59 Mass media published from the first hour horrid details about the events – partly based on leaks from unidentified public and airline officials – and speculative theories about the identities of the perpetrators and their motives. The official account on 9/11 was established by political leaders and the media within less than 48 hours of the attacks. This account can be summarized in a few sentences: Nineteen Muslims boarded four aircraft in the morning of 11 September 2001. Five of them boarded flight AA11 that departed from Boston; five boarded UA175 that also departed from Boston; five boarded flight AA77 that departed from Dulles Airport, Washington, D.C.; and four boarded flight UA93 that departed from Newark International Airport. These four terrorist teams hijacked the aircraft in mid-air with knives, seized control over the aircraft and flew the aircraft into buildings, killing themselves, the passengers and the crew. They flew the aircraft designated as flight AA11 into the North Tower, flight UA175 into the South Tower, flight AA77 into the Pentagon and attempted to crash flight UA93 into the White House but did not succeed to carry out their plan due to the uprising of the passengers. The aircraft then crashed near Shanksville, Pennsylvania. The hijackers were swiftly identified as having links to al Qaeda. Osama bin Laden later admitted to have personally selected them for these specific attacks. 56 See http://en.wikipedia.org/wiki/The_Pet_Goat 57 CNN, Transcript of George W. Bush’s address to the nation. Available at

http://transcripts.cnn.com/TRANSCRIPTS/0109/11/bn.02.html 58 Joint Resolution 61 (by the Senate and House of Representatives), 12 September 2001. Available at

http://www.house.gov/ryan/press_releases/2001pressreleases/HJRES61.html 59 This formulation echoes Tanrikulu v Turkey, ECHR, Application no. 23763/94, Judgment of 8 July 1999,

para. 108

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C. Did the US Government Seek to Establish the Truth on 9/11?

On 12 September 2001 Attorney General John Ashcroft announced that the Department of Justice ‘has undertaken perhaps the most massive and intensive investigation ever conducted in this country.’60 On the following day, FBI Director Robert Mueller promised: ‘We will leave no stone unturned in our quest to find those responsible and bring those individuals to justice’.61

Yet, while announcing a massive investigation, Attorney General Ashcroft added that the

investigation was not FBI’s priority: The main task of the FBI, he said, was to ‘stop another attack’.62 In the same morning White House Press Secretary Ari Fleischer announced – citing undisclosed intelligence sources – that the risks of another attack were ‘significantly reduced’, because ‘the perpetrators have executed their plan’.63

On 9 October 2001 the New York Times reported that John Ashcroft and Robert Mueller

had ‘ordered [FBI] agents to drop their investigation of the attacks or any other assignment any time they learn of a threat or lead that might suggest a future attack.’64

Asked in court to tell ‘what steps the FBI and the PENTTBOM65 squad took to investigate

the September 11 attacks’, FBI Special Agent James M. Fitzgerald answered: ‘In general steps, the FBI as well as the PENTTBOM squad obtained financial documents, bank records, e-mail accounts, hard drives from computers to review those, post office box information, car rental information, things of that nature, to attempt to determine – to determine the extent of the contacts of the hijackers when they were in the United States and the activities that they performed.’66 His answer confirms that the investigation did not focus on what actually happened on the tragic day.

Shortly after 9/11, the Congress established a compensation mechanism for victims’ families,67 who, in order to apply for compensation, had to sign away their ‘right to file a civil action ...in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001.’68 The ostensible intent of this provision was to

60 John Ashcroft, Media Briefing, 12 September 2001. Available at

http://www.yale.edu/lawweb/avalon/sept_11/ashcroft_briefing01.htm 61 Dan Eggen, ‘FBI Launches Massive Manhunt’, Washington Post, 13 September 2001. Cached at

http://nucnews.net/nucnews/2001nn/0109nn/010913nn.htm#510 62 Bob Woodward and Dan Balz, ‘We Will Rally the World’ [A review of the events of 12 September

2001], Washington Post, 28 January 2002. Available at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A46879-2002Jan27&notFound=true, mirrored at: http://www.aldeilis.net/aldeilis/content/view/1604/107/

63 Ari Fleischer, White House Morning Briefing, 12 September 2001, 9:57 AM. The transcript of this press briefing was removed from the White House website. Cached at: http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=464&Itemid=107

64 Philip Shenon and David Johnston, ‘F.B.I. Shifts Focus to Try to Avert Any More Attacks’, New York Times, 9 October 2001. Available at http://www.nytimes.com/2001/10/09/national/09INQU.html, mirrored at http://www.aldeilis.net/aldeilis/index.php?option=content&task=view&id=346&Itemid=107

65 PENTTBOM was the acronym given by the FBI to the 9/11 investigation. 66 USA v Zacarias Moussaoui, Transcript of Jury Trial, 7 March 2006, 10:00 AM, p. 36. Available at

http://cryptome.org/usa-v-zm-030706-01.htm 67 Title IV of [Act of Congress] HR 2926 To Preserve the Continued Viability of the United States Air

Transportation System, 22 September 2001. Available at http://www.yale.edu/lawweb/avalon/sept_11/hr2926.htm

68 Ibid. Title IV, Section 405 (c) (3)

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protect the airlines against legal suits by victims’ families, but an intended or unintended side-effect was to prevent victims’ families from using court discovery procedures in their quest for the truth.69

While ‘investigations into past disasters and attacks such as Pearl Harbor, the Titanic, the

assassination of President Kennedy and the Shuttle Challenger explosion were established in less than 10 days’,70 President Bush opposed a public investigation of 9/11. Due to pressure by victims’ families, supported by members of Congress, he finally accepted after 411 days to form a National Commission of Inquiry. It is, however, the duty of a government to search for the truth on its own. This duty does not depend “on the procedural initiative of the victim or his next of kin.”71 On 15 November 2002 the U.S. Congress approved legislation creating the National Commission on Terrorist Attacks Upon the United States mandated to ‘examine and report on the facts and causes relating to the September 11th terrorist attacks’ and ‘make a full and complete accounting of the circumstances surrounding the attacks.’ President Bush signed it into law on 27 November 2002. The very title of the Commission set its course of inquiry to conform with the fact determined by Congress on September 12, 2001, namely that the events of 9/11 were an attack from outside the United States.

The Commission was initially accorded $3 million, a derisory sum in comparison to the

$40 million price of the Starr investigation72 or the $112 million spent by NASA to support the investigation of the Columbia space shuttle tragedy in which seven people died.73 When asked for an additional $8 million for the 9/11 Commission’s work, President Bush initially refused the request.74 Most of its members had a conflict of interest.75 The Commission’s Executive Director, Philip D. Zelikow, hand-picked by President Bush, had huge conflicts of interest that prompted the Family Steering Committee (a group of victims’ families) to repeatedly call for his removal.76

Assigning a low priority to the 9/11 investigation, offering generous77 compensation to

victims’ families on the condition that they will not seize the courts, efforts to prevent a public inquiry of 9/11 and establishing a Commission of Inquiry ‘predestined to be

69 Joe Taglieri, ‘9-11 Lawsuits: Saudis, Airlines, Bush Face Litigation’, From the Wilderness, 27 August

2002. Available at http://www.fromthewilderness.com/free/ww3/082702_lawsuits.html; also Walter Gilberti, ‘Bush administration moves to stifle discovery in 9/11 lawsuits’, World Socialist Web Site, 2 August 2002. Available at http://www.wsws.org/articles/2002/aug2002/bush-a02.shtml

70 Citizens critique of flawed 9/11 Commission process, 23 July 2004. Available at http://www.911citizenswatch.org/modules.php?op=modload&name=News&file=article&sid=353

71 The Ituango Massacres v Colombia, Inter-American Court of Human Rights, Judgment of 1 July 2006, para. 296

72 Terry Frieden, ‘Price tag for Starr investigation: $40 million plus’, CNN, 1 February 1999 73 Paul Recer, ‘NASA: Columbia Cleanup Cost Nears $400M’, NewsDay.com, 11 September 2003, at

http://www.newsday.com/news/science/wire/sns-ap-shuttle-investigation,0,7895931.story 74 Cited by Griffin, The 9/11 Commission Report: Omissions and Distortions, (Northampton: Olive Branch

Press, 2005), p. 284, n. 12. 75 9-11 Research, The Kean Commission: The Official Commission Avoids the Core Issues. Available at

http://911research.wtc7.net/post911/commission/index.html; ‘Conflicts Of Interest On Sept. 11 Panel? 6 Of 10 Panel Members Allegedly Have Ties To Airline Industry’, CBS News, 5 March 2003. Available at http://www.cbsnews.com/stories/2003/03/05/eveningnews/main542868.shtml

76 Griffin, supra n. 74, at 8 77 The average awards to families of victims exceeded $2 million. Source: Final Report of the Special

Master for the September 11th Victim Compensation Fund of 2001. Available at http://www.usdoj.gov/final_report.pdf

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ineffective’78, were all indications that the US government did not want the American people to know the truth about the events of 9/11.

D. Was the 9/11 Investigation Thorough? In order to be regarded as thorough according to the UN Principles mentioned in Part I, a murder investigation should determine the ‘cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses...’79 As will be shown below, the investigation of 9/11 failed the test of thoroughness, as defined in the UN Principles, for it (a) failed to establish beyond reasonable doubt the identities of those responsible for the deaths; (b) failed to determine the time, location or manner of death of most victims; and (c) failed to adequately collect and analyse evidence and statements from witnesses. (i) How was the crime perpetrated? According to the official account, the actual execution of the crime occurred on board of four aircraft between approximately 8:20 and 10:00 AM EST, leaving no perpetrator, victim and witness alive.80 The official account of what happened on board the aircraft is based almost entirely on contents of phone calls made by passengers and crew to various persons on the ground and the contents of a single retrieved cockpit voice recorder (CVR). CVRs are extremely sturdy devices recording conversations, radio transmissions and all others sounds in an airplane’s cockpit for the last 30 minutes of its flight. They are supposed to withstand an impact tolerance of 3400 Gs/6.5ms and 30 minutes of 1100C hot fire.81 According to the FBI and the National Transportation Safety Board (NTSB), the flight data recorders (FDRs) and the CVRs (‘black boxes’) of the aircraft, which crashed on the Twin Towers, were never found82 and the CVR from the crash site at the Pentagon was reported as unreadable.83

Yet a thorough investigation would have to exercise particular care in authenticating the evidence in a case where all perpetrators, victims and witnesses are dead and where information regarding the scenario of the crime is relayed by electronic means. The following evidence regarding the phone calls should therefore have been authenticated: (a) the identities of those who received the calls; and (b) the reliability, consistency and credibility of the reported conversations; and (c) the location from where the calls were made.

The identities of those who received the calls 78 ‘[T]he State has the obligation to initiate ex officio, immediately, a genuine, impartial and effective

investigation, which is not undertaken as a mere formality predestined to be ineffective.’ The Ituango Massacres v. Colombia, supra n. 71

79 UN Principles (1989), para. 9, see supra n. 12 80 Staff Statement No. 4 (‘The Four Flights’) to the 7th 9/11 Commission Hearing held on 26-27 January

2004. Available at http://www.9-11commission.gov/staff_statements/staff_statement_4.pdf

81 Cockpit Voice Recorders (CVR) and Flight Data Recorders (FDR) (Specifications). Available at http://www.atlasaviation.com/CVR/about_cockpit_voice_recorders.htm

82 Dave Lindorff, ‘Missing Black Boxes in World Trade Center Attacks Found by Firefighters, Analyzed by NTSB, Concealed by FBI’, CounterPunch, 19 December 2005, quotes an official of the NTSB: ‘Off the record, we had the boxes ...we worked on them here.’ Available at http://www.counterpunch.org/lindorff12202005.html

83 Associated Press, ‘FBI analyzing voice, data recorders from two flights’, St. Petersburg Times, 15 September 2001. Available at http://www.sptimes.com/News/091501/Worldandnation/FBI_analyzing_voice__.shtml

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Approximately 20 people on the ground are said to have received phone calls from passengers and crew.84 The names of all these phone call recipients have been published. No one has challenged their identities. A difficulty arose, however, to have some of these individuals confirm their quoted statements. In one reported case, Michael Sweeney, the husband of flight attendant Amy Sweeney who died on 9/11, was prevented from talking to former American Airlines employee Michael Woodward, who was the last to talk to his late wife.85 Reliability, consistency and credibility of the reported conversations Information about most phone calls was publicized in mass media. Yet it is not known how many of these reports reflected direct testimonies by the recipients of the calls. In several cases, the published information on the phone calls was not provided by the direct recipient of the call but by a third party: A relative, a priest, a friend or another spokesperson of the recipient.86 Contradictory and implausible accounts about the calls have also been reported. The 9/11 Commission has not disclosed whether the recipients of the calls have formally confirmed their reports through depositions or sworn statements.

According to one published account, flight attendant Amy Sweeney of flight AA11

provided in her phone call seat numbers for three suspects on flight AA11, namely seats 9G, 9D and 10B, respectively.87 According to another published account, attendant Betty Ong of the same flight provided in her phone call seat numbers for four suspects, namely 2A, 2B, 9A and 9B.88 According to the Federal Aviation Administration (FAA), seat 9B, occupied according to Betty Ong by one of the suspects, had been occupied by Daniel M. Lewin who was allegedly stabbed to death.89 According to the 9/11 Commission, the seat numbers of five alleged hijackers on that flight were: 2A, 2B, 8D, 8G, 10B.90 The Commission did not provide any explanation for these conflicting accounts.

According to the San Francisco Chronicle four separate phone calls were made by Thomas Burnett from flight UA93 to his wife Deena. She reported to have noted exactly the

84 See http://911research.wtc7.net/planes/evidence/calldetail.html 85 Gail Sheehy, ‘Stewardess ID’d Hijackers Early, Transcripts Show’, The New York Observer, 15 February

2004. Available at http://www.observer.com/node/48805 86 The following people provided information on some of the calls: Mareya Schneider was the aunt of

CeeCee Lyles, http://www.post-gazette.com/headlines/20010922gtenat4p4.asp; Rev. Frank Colacicco was the family priest, of family Burnett http://www.peoplesstory.com/lastwords.html; Richard Makely was the father-in-law of Jeremy Glick; Doug MacMillan was a friend of Todd Beamer, http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/09/17/MN40630.DTL; Linda Campbell was a spokeswoman of a school, where the mother of flight attendant Renee May was working: http://www.reviewjournal.com/lvrj_home/2001/Sep-13-Thu-2001/news/16989631.html

87 Gail Sheehy, supra n. 85. Yet, in the interview conducted on September 13, 2001 by an undisclosed law-enforcement official with Michael Woodward, who was the airlines’ official who talked to Amy Sweeney, there is no mention of seat numbers. The report of this interview does neither include timings nor the questions asked by Woodward. What was the source of Gail Sheehy’s allegations? The contents of this interview are found here: http://intelfiles.egoplex.com/911COMM-Chapter-1-We-Have-Some-Planes-03.PDF

88 Glen Johnson, ‘Probe reconstructs horror, calculated attacks on planes’, Boston Globe, 23 November 2001. Available at http://www.boston.com/news/packages/underattack/news/planes_reconstruction.htm. As with the case of Amy Sweeney above, the official interview with those who received Ong’s call does not mention that she relayed the seat numbers of the alleged hijackers. What was the source of the media report? See http://intelfiles.egoplex.com/911COMM-Chapter-1-We-Have-Some-Planes-04.PDF

89 http://en.wikipedia.org/wiki/Daniel_M._Lewin 90 Final Report of the National Commission on Terrorist Attacks Upon the United States, Official

Government Edition. Available at http://www.gpoaccess.gov/911/index.html, p. 2

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call times as 9:27, 9:34, 9:45 and 9:54.91 However a court document produced at Moussaoui’s trial regarding Burnett’s phone calls only lists three phone calls made to her at 9:30:22, 9:37:54 and 9:44:23.92 Neither the number of calls nor the timings match.

Lisa Jefferson, a telephone supervisor working for Verizon Corporation who reportedly received a call from a passenger on board of Flight UA93, was interviewed telephonically by undisclosed law-enforcement officials few hours after the attacks on 9/11. The contents of this interview and the identity of the interviewer remain classified.93 Yet, news media have reported in detail about this conversation. According to these reports Todd Beamer, a passenger from flight UA93 unknown to her, called at 9:45 and talked with her for 13 minutes. Jefferson ‘could hear shouts and commotion and then Beamer asked her to pray with him. They recited the 23rd Psalm. He got Jefferson to promise that she would call his family, then dropped the phone, leaving the line open...Then there was silence. Jefferson hung up at 10 a.m. EST, realizing that the plane had gone down. Officials said it crashed at 9:58 a.m.’94 Lisa Beamer, Todd’s wife, reporting a conversation she had with Jefferson, said her husband ‘told [Jefferson] about our family, and he told her about me. And she knew the boys names. And she knew we were expecting a baby in January.’95 There is no evidence that this distress call was recorded, as might have been expected from a phone company. Jefferson did not go “through the routine questions in her distress-call manual. She had not connected this agitated man to his wife waiting anxiously at home...Mrs Beamer only learned of her husband’s final call four days later, when a representative of United Airlines got in touch.’96 There is no explanation why the US authorities keep secret the contents of the interview with Lisa Jefferson, nor is it known from where news media obtained the information about the conversation that had taken place between Todd Beamer and Lisa Jefferson.

A critical analysis of the phone calls from UA93 was made by John Doe II (pseudonym).

He reveals at least 14 glaring contradictions, oddities and anomalies that were not investigated by the FBI or the 9/11 Commission.97 The location from which the calls were made According to media stories published shortly after 9/11, ten calls had been made from the aircraft with cellular phones.98 At least one recipient, Deena Burnett, explicitly stated that she recognised her husband’s cell phone ID when he called.99 Experimental and empirical evidence, however, indicates that cell phone calls are unlikely to succeed from aircraft flying

91 Susan Sward, ‘The Voice of the Survivors’, San Francisco Chronicle, 21 April 2002. Available at

http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/04/21/MN190309.DTL 92 http://911research.wtc7.net/planes/evidence/docs/calls/Flight93/ThomasBurnett.jpg 93 Intelwire.egoplex.com, at

http://intelfiles.egoplex.com/911COMM-Chapter-1-We-Have-Some-Planes-02.PDF 94 Jim McKinnon, ‘The phone line from Flight 93 was still open ...’, Post-Gazette.com, 16 September 2001).

Available at http://www.post-gazette.com/headlines/20010916phonecallnat3p3.asp 95 ‘A Call of Courage’, NBC News, 18 September 2001. Available at

http://www.damien.tv/Terror/beamer.htm 96 Rowland Morgan, ‘Flight 93 was shot down’, London Daily Mail, 19 August 2006, cached at

http://www.prisonplanet.com/articles/august2006/190806shotdown.htm 97 John Doe II, ‘UA 93: Too Many Contradictions’. 12 March 2005, Available at

http://www.team8plus.org/e107_plugins/forum/forum_viewtopic.php?24 98 A detailed and annotated list of the phone calls is available at

http://www.thewebfairy.com/killtown/chart.html#Edward_Felt 99 Greg Gordon, ‘Widow tells of poignant last calls’, The Sacramento Bee, September 11, 2002. Cached at

http://holtz.org/Library/Social%20Science/History/Atomic%20Age/2000s/Sep11/Burnett%20widows%20story.htm. Confirmed in a letter by Tom Burnett’s father to the National Review, 20 May 2002, cached at http://findarticles.com/p/articles/mi_m1282/is_9_54/ai_85410322

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above 8,000 feet.100 Was the call made from another location? If it was wrongly assumed that the calls had been made with cell phones, it would mean that they had been made with so-called airfones fixed to the back of the seats101. This fact could have been easily determined within days after 9/11, because each phone call generates a billing record and can be traced to the particular location and equipment. Such evidence has not been produced.102 An answer to this question is particularly important with regard to flight AA77, because airfones apparently were not available on this aircraft on 9/11.103 Should this absence be confirmed, it would mean that the calls reported from that aircraft had either been made from another location or were simply fairy-tales. This, in turn, would raise questions about the reliability of the official account regarding the other phone calls. The cockpit voice recorder The only retrieved CVR – according to official reports – was from flight UA93 which allegedly crashed on a field in Pennsylvania. This CVR poses another problem. The FBI controlled the analysis of that CVR and initially opposed to have even family members listen to it.104 Questions remain about the authenticity of this CVR: Transcripts of CVRs from other aircraft crashes around the world, that are publicly accessible on the internet, mention numerous engine and other ambient sounds from the cockpit in addition to conversation.105 The transcript of Flight UA93’s CVR does not mention any such sounds106 and particularly no crash sound at the end, as would be expected,107 suggesting that the transcript does not faithfully reflect what is heard in the recording. German author Gerhard Wisnewski made a pertinent observation that the released transcript differed significantly from authentic CVR transcripts by failing to mention the aircraft’s ID, the name of the person and the agency who issued the transcript and the date the transcript was issued.108 The released transcript cannot, therefore, be attributed to any transcriber. Furthermore serious discrepancies have been revealed between what family members heard when the CVR was first played to them by the FBI on 18 April 2002109 and what the 9/11 Commission reported to have heard from the CVR recording at a later date. These discrepancies suggest that the CVR recording has either been manipulated110, that two versions had been made from one CVR or that the released documents had been fabricated.

As the phone calls from the aircraft and the CVR from Flight UA93 constitute the main evidence regarding the actual scenario of the crime, only full transparency of such data,

100 Wireless Review, 1 Nov. 2001; A.K. Dewdney, ‘Project Achilles’: Final Report and Summary of

Findings, April 19, 2003. Available at http://physics911.net/projectachilles 101 Final Report of the 9/11 Commission, infra n. 144, Note 77 to Chapter I 102 The evidence presented at the Moussaoui trial is inconclusive and unsourced, see

http://911research.wtc7.net/planes/evidence/calldetail.html 103 David Ray Griffin and Rob Balsamo, ‘Could Barbara Olson Have Made Those Calls? An Analysis of

New Evidence about Onboard Phones’, Pilots for 9/11 Truth, 26 June 2007. Available at http://pilotsfor911truth.org/amrarticle.html

104 Reuters News Service, ‘FBI refuses to release cockpit tape from hijacked flight’, Houston Chronicle, 20 December 2001. Available at http://www.chron.com/disp/story.mpl/special/terror/front/1181993.html

105 See EgyptAir 990 CVR Transcript: http://www.ntsb.gov/Events/EA990/docket/Ex_12A.pdf; SwissAir Flight 111 CVR Transcript: http://aviation-safety.net/inv....._sr111.php; TWA Flight 800 CVR Transcript: http://aviation-safety.net/inv....._tw800.php

106 http://i.a.cnn.net/cnn/2006/images/04/12/flight93.transcript.pdf 107 Released CVR recordings from aircraft crashes are available at

http://www.airdisaster.com/cvr/cvrwav.shtml 108 Gerhard Wisnewski, Verschlußsache Terror – Wer die Welt mit Angst regiert, Knauer Taschenbuch,

2007, pp. 130-131 109 John Doe II, supra n. 96 110 Ibid.

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including the disclosure of the identities of those who compiled the data, can ensure the right of victims and the public to the truth. (ii) Who were the perpetrators?

The US government alleges that nineteen individuals whose names and photographs have been released by the FBI111 and whom no one has seen since 11 September 2001, had booked seats on flights AA11, AA77, UA93 and UA175 for that same day, boarded onto those flights, hijacked the aircraft and deliberately crashed these aircraft with passengers and crew on the Twin Towers of the World Trade Center, the Pentagon and on a field in Pennsylvania.

The accusations against these nineteen individuals were based, for the most part, on what were described as lucky discoveries made on 9/11 by the FBI. The first was the discovery of two pieces of luggage allegedly owned by Mohammed Atta, the lead suspect, which were not loaded onto flight AA11. The reason for this alleged mistake at Logan airport was never disclosed. According to FBI Special Agent James M. Fitzgerald, who testified at the Moussaoui trial, the connecting flight from Portland which brought Mohammed Atta and Abdul Aziz Alomari to Boston, had ‘arrived too late for the luggage to be loaded onto Flight 11’112 According to the 9/11 Commission, however, the flight arrived on time at approximately 6:45 A.M., one hour before the scheduled departure of Flight AA11.113 The contents of the luggage enabled FBI agents to ‘swiftly unravel the mystery of who carried out the suicide attacks and what motivated them’.114

Among the items reportedly found in Atta’s bags were: a hand-held electronic flight computer, a simulator procedures manual for Boeing 757 and 767 aircraft, a slide-rule flight calculator, a copy of the Qur’an and a handwritten testament written in Arabic.115 According to later testimonies by former FBI agents, the luggage also contained the identities of all 19 suspects involved in the four hijackings, information on their plans, backgrounds, motives, al Qaeda connections and [a] folding knife and pepper spray.116 According to FBI Special Agent Fitzgerald, Abdul Aziz Alomari’s passport was also found in one the bags.117

Other incriminating items of evidence were also swiftly found. The 9/11 Commission noted that a passport of one of the alleged hijackers was found near the World Trade Center where a ‘passer-by picked it up and gave it to a NYPD detective shortly before the ...towers collapsed’118. Numerous observers found it difficult to believe that such a document could make it undamaged from the pocket of a dead suspect in the burning wreckage within the building to the street and be found within minutes. A Saudi Arabian driver’s license of Ahmad al-Ghamdi, another suspect, ‘was recovered at the World Trade Center crash site’. A ‘four-page letter written in Arabic that was identical to the one recovered from the luggage of 111 FBI, Press Release, 27 September 2001. Available at

http://www.fbi.gov/pressrel/pressrel01/092701hjpic.htm 112 United States of America v Zacarias Moussaoui, U.S. District Court, Alexandria Division. Cross-

examination of FBI Special Agent James M. Fitzgerald. March 7, 2006, 10:00 A.M. Transcript p. 38. Available at http://cryptome.org/usa-v-zm-030706-01.htm

113 9/11 Commission’s Staff Report of 26 August 2004 (declassified), p. 3. Available at http://www.archives.gov/legislative/research/9-11/staff-report-sept2005.pdf

114 Michael Dorman, ‘Unravelling 9-11 was in the bags’, Newsday, 17 April 2006. Available at http://www.newsday.com/news/nationworld/nation/ny-uslugg274705186apr17,0,6096142.story?coll=ny-nationalnews-print

115 FBI Affidavit, at http://www.abc.net.au/4corners/atta/resources/documents/fbiaffidavit1.htm 116 Michael Dorman, supra n. 113 117 United States of America v Zacarias Moussaoui, supra n. 111 118 Susan Ginsburg (staff member of the Commission) at Public Hearing of the 9/11 Commission, 26

January 2004. Available at http://www.sacred-texts.com/ame/911/911tr/012604.htm

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Mohammed Atta at Logan Airport’, a cashier’s check made out to a flight school in Phoenix, four drawings of the cockpit of a 757 jet, a box cutter-type knife, maps of Washington and New York, and a page with notes and phone numbers, were found in a Toyota Corolla registered to alleged hijacker Nawaf Alhazmi at Washington’s Dulles Airport on 12 September.119 In a car rented by alleged hijacker Marwan Alshehhi discovered at Boston’s Logan Airport, the FBI discovered an Arabic language flight manual, a pass giving access to restricted areas at the airport, documents containing a name on the passenger list of one of the flights, and the names of other suspects. The name of the flight school where Mohammed Atta and Alshehhi studied, Huffman Aviation, is also found in the car.120 A number of documents purporting to identify the suspects of flight UA93 were also reportedly found at that flight’s crash site, where no wreckage was seen and no drop of blood.121 These included the passport of suspect Al Ghamdi,122 Alnami’s Florida Driver’s License123, his Saudi Arabian Youth Hostel Association ID card124, a visa page from Ziad Jarrah’s passport125, and a business card of Jarrah’s uncle.126 At the Pentagon crash site, a “Kingdom of Saudi Arabia Student Identity Card” is discovered with alleged hijacker Majed Moqed’s name on it.127

On September 12, 2001, the FBI was notified by a hotel owner in Deerfield Beach,

Florida, that he found a box cutter left in a room left by alleged hijacker Marwan Alshehhi and two unidentified men. The owner said having found in a nearby trash a duffel bag containing Boeing 757 manuals, three illustrated martial arts books, an 8-inch stack of East Coast flight maps, a three-ring binder full of handwritten notes, an English-German dictionary, an airplane fuel tester, and a protractor.128

The night before 9/11, after making predictions of an attack on America the next day, some of the alleged hijackers were reported to have left a business card and a copy of the Qur’an at the bar.129

The amount and nature of all of that incriminating evidence impelled an unidentified former high-level intelligence official to suggest: “Whatever trail was left was left deliberately – for the FBI to chase.”130 Whatever the truth of this suspicion, it is important to remember that the discovery of these items does not prove that their alleged owners actually boarded any particular aircraft, hijacked that aircraft and crashed the aircraft at the known sites. In order to prove that the suspects actually boarded the aircraft and died at the known crash sites, at least three types of evidence should have been produced: Authenticated

119 U.S. v. Moussaoui, supra n. 111, p. 39; Arizona Daily Star, 28 September 2001, Cox News Service, 21

October 2001. 120 Los Angeles Times, 13 September 2001 121 Robb Frederick, ‘The day that changed Amereica’, Pittsburgh Tribune-Review, 11 September 2002.

Cached at http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=2263&Itemid=107

122 Moussaoui trial exhibit PA00108, at http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/prosecution/PA00108.html

123 Moussaoui trial exhibit PA00110, at http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/prosecution/PA00110.html

124 Moussaoui trial exhibit PA00102, at http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/prosecution/PA00102.html

125 Moussaoui trial exhibit PA00105.08, at http://www.vaed.uscourts.gov/notablecases/moussaoui/exhibits/prosecution/PA00105-08.html

126 Moussaoui trial exhibit GX-PA00109, at http://www.rcfp.org/moussaoui/ 127 9/11 Commission Final Report, infra n. 144, p. 132 128 Miami Herald, 16 September 2001; Associated Press, 16 September 2001. 129 Associated Press, 14 September 2001 130 The New Yorker, 8 October 2001

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passenger lists, identification of the suspects as they boarded the aircraft and identification of their bodily remains from the crash sites. (a) No authenticated passenger lists Airline passenger lists are essential documents required for insurance purposes. This is why it is important for each airline to meticulously document and check the identities of passengers who board passenger airliners.

On 13 September 2001 Attorney General John Ashcroft said that ‘[b]etween three and six individuals on each of the hijacked airplanes were involved’ in the hijackings.131 On the same day FBI Director Robert Mueller said that a ‘preliminary investigation indicated 18 hijackers were on the four planes -- five on each of the two planes that crashed into the World Trade Center, and four each on the planes that crashed into the Pentagon and in Pennsylvania’.132 A day later the number grew to 19.133 Initially, the name of Mosear Caned (ph) was released by CNN as one of the suspected hijackers.134 His name disappeared a few hours later from the list of suspects when CNN posted a new list of suspects released by the FBI135. It was never explained why Caned’s name had appeared in the first place and why it was then removed.136 Two other names, Adnan and Ameer Bukhari, whose names had also apparently figured on the original passenger list, disappeared and were replaced by other names.137 A fourth person, Amer Kamfar, was also named as an initial suspect hijacker.138 His name also disappeared from the subsequent lists of suspect hijackers. The Washington Post revealed that the original passenger lists did not include the name of Khalid Al Mihdhar who later appeared as one of the alleged hijackers. In its Final Edition of 16 September 2001 the paper explained that his name ‘was not on the American Airlines manifest for [Flight 77] because he may not have had a ticket.’139 After that date ‘reports began emerging saying that al-Mihdhar was still alive.’140

On 12 September 2001, various newspapers published partial passenger lists of the crashed flights. These reports included Jude Larsson, 31, and his wife, Natalie, 24, as passengers aboard flight AA11.141 Yet on September 18, 2001, the Honolulu Star Bulletin reported that the newspaper had received an email from Jude, apparently alive, notifying of the mistake.142 According to the paper, “a person claiming to be with the airlines” called Jude’s father, a person described as a “known sculptor” in his community, and informed him that his 131 ‘FBI: Early probe results show 18 hijackers took part’, CNN, 13 September 2001. Available at

http://edition.cnn.com/2001/US/09/13/investigation.terrorism/ 132 Ibid. 133 FBI Press Release of 14 September 2001. Available at

http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=372&Itemid=107 134 Kelli Arena, CNN, 14 September 2001, 10:11 ET. Available at

http://transcripts.cnn.com/TRANSCRIPTS/0109/14/bn.01.html 135 ‘FBI list of suspected hijackers’, CNN, 14 September 2001, 2:00 PM, EDT. Available at

http://edition.cnn.com/2001/US/09/14/fbi.document/ 136 Xymphora, ‘Analysis of the Mosear Caned mystery’. Available at

http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=1993&Itemid=107 137 Mike Fish, ‘Fla. flight schools may have trained hijackers’, CNN, 14 September 2001. Available at

http://edition.cnn.com/2001/US/09/13/flight.schools/ 138 Wikipedia, http://en.wikipedia.org/wiki/Amer_Kamfar 139 Khalid Al-Mihdhar, Washington Post, 16 September 2001, p. A06 (no author indicated) 140 Wikipedia: Khalid Al-Mihdhar. Available at http://en.wikipedia.org/wiki/Khalid_al-Mihdhar 141 CBS, 12 September 2001, http://election.cbsnews.com/stories/2001/09/12/national/main310935.shtml;

The Honolulu Star Bulletin, 12 September 2001, http://starbulletin.com/2001/09/12/news/story1.html; Washington Post, 13 September 2001, http://www.washingtonpost.com/ac2/wp-dyn/A18970-2001Sep12; CNN (undated), http://edition.cnn.com/SPECIALS/2001/trade.center/victims/AA11.victims.html.

142 Honolulu Star Bulletin, 18 September 2001, http://starbulletin.com/2001/09/18/news/story5.html

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son and daughter-in-law had been passengers on flight AA11. The names of Jude and Natalie Larson then disappeared from publicized passenger lists. More bizarre is that the names of Jude and Natalie Larson, whose names are not anymore officially listed as flight AA11 victims, are still listed as dead on the National Obituary Archive.143

The aforementioned fluctuations in the number and names of the alleged hijackers (and two passengers) suggest that their identification was not based on the original passenger lists. While printouts purporting to be copies of passenger lists from 9/11 were presented as exhibits at the Moussaoui trial and posted in May 2006 on the web144, these printouts contain no authentication and were not accompanied by chain-of-custody reports. These lists were released discreetly, without comments or indication as to their source.

While the names of all passengers, crew and suspected hijackers were publicized shortly after 9/11 in the media, the FBI and the airlines have consistently refused and continue to refuse to release the authentic, original, passenger lists and flight manifests, of the four 9/11 flights: AA11, AA77, UA175 and UA93 that would confirm who checked in to these flights.145 As the names of all victims are long known, privacy considerations cannot explain such refusal to produce the original documents. (b) No testimonies of aircraft boarding

A second category of evidence to prove that particular individuals have boarded a particular airplane at a particular gate and a specific time, is eyewitness testimony and security video recordings.

According to the 9/11 Commission, ten of the nineteen suspects were selected on 9/11 at

the airports by the automated CAPPS system for ‘additional security scrutiny’.146 Yet no one of those who handled the selectees, or any of the numerous airline or airport security employees interviewed by the FBI or the FAA on or after 9/11 is known to have seen the suspects. As for flights AA11 and UA175, the 9/11 Commission found that “[n]one of the [security] checkpoint supervisors recalled the hijackers or reported anything suspicious regarding their screening.”147 As for flight AA77, the 9/11 Commission wrote that “[w]hen the local civil aviation security office of the FAA later investigated these security screening operations, the screeners recalled nothing out of the ordinary. They could not recall that any of the passengers they screened were CAPPS selectees.”148 As for flight UA93, the 9/11 Commission indicated that the “FAA interviewed the screeners later; none recalled anything unusual or suspicious.”149 According to an undated FBI report, the ‘FBI collected 14 knives

143 National Obituary Archive: http://www.arrangeonline.com/Obituary/obituary.asp?ObituaryID=64182329;

http://www.nationalobituaryarchive.com/donation/donation.asp?ObituaryID=64182329; http://www.cemeteryonline.com/ctz/0Mem/20010911/AA11-2001.htm

144 http://911research.wtc7.net/planes/evidence/passengers.html 145 The refusal to release the original passenger lists, has typically taken an evasive form, illustrated in an

exchange of emails between this author and American Airlines. See http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=2329&Itemid=107

146 Final Report of the National Commission on Terrorist Attacks Upon the United States, Official Government Edition (“9/11 Commission Report”), Available at http://www.gpoaccess.gov/911/index.html, Chapter I, Note 2, p. 451.

147 Ibid. Chapter I, p. 2. In support of this statement, the Commission refers to interviews with six named individuals.

148 Ibid. Chapter I, p. 3. In support of this statement, the Commission refers to an interview made on April 12, 2004 with Tim Jackson, a person whose role is not indicated.

149 Ibid. Chapter I. p. 4. In support of this statement, the Commission refers to an unreleased FAA report, “United Airlines Flight 93, September 11, 2001, Executive Report,” of Jan. 30, 2002.

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or portions of knives at the Flight 93 crash site.’150 Yet no screener is known to have mentioned coming across a single knife that morning.151

Airline personnel see off passengers as they board onto aircraft in order to tear off the stub

of their boarding cards or simply to count the passengers. Under the circumstances of 9/11, one would have expected to see and hear media interviews with those who were the last to have seen passengers and crew alive, particularly airline personnel who observed the boarding process in the morning of 9/11. Yet no such interview apparently took place. The 9/11 Commission does not mention the existence of any deposition or testimony by these airline personnel. And even the identities of these employees remains secret: As a response to this author’s request to interview, for research purposes, American Airlines employees who saw off passengers of flight AA77, the airline responded that their identities cannot be revealed for privacy reasons.152

As no person has testified to have witnessed the boarding process, did perhaps security cameras document it? Apparently none of the three airports from where the 9/11 aircraft reportedly departed had surveillance cameras above the boarding gates. Thus, there exists neither eyewitness testimony nor a visual documentation of the boarding process.

Yet public opinion remains convinced that surveillance videos of the boarding process had

been shown on TV networks. In fact, what has been shown around the world was not the boarding process of any of the four aircraft but two video recordings, one of which is said to be from Portland airport and the other from Dulles Airport. The Portland video purports to show Mohammed Atta and alleged hijacker Alomari before they board onto a connecting flight to Boston. This video does not prove that they boarded any flight at Logan airport. The other video recording is said to be from the screening checkpoint at Dulles Airport from where flight AA77 allegedly departed.

According to all known sources, Logan Airport in Boston did not have any surveillance

cameras on 9/11, neither at the security checkpoints nor above the boarding gates.153 According to the 9/11 Commission’s staff, the Newark International Airport did not either have such equipment154. But this claim has been contradicted by Michael Taylor, president of American International Security Corporation.155 The only recording attempting to place the alleged hijackers at one of the three departure airports is a grainy surveillance recording purporting to show the alleged hijackers of flight AA77 pass through the security checkpoint at Dulles Airport, Washington, D.C. This recording was not voluntarily released by the US government, but was forced out in 2004 under the Freedom Of Information Act.156 This video recording can be found on various sites on the Internet.157 Jay Kolar, who published a critical analysis of this recording,158 points out the absence of identifying data such as date, time and 150 Ibid. Note 82, p. 457 151 Staff Statement No. 3 to the 9/11 Commission made at the 7th Public Hearing, 26-27 January 2004, pp.

9-10. Available at http://www.9-11commission.gov/staff_statements/staff_statement_3.pdf

152 Exchange of emails between the author and American Airlines, supra n. 143. See letter from American Airlines to the author dated 1 December 2005.

153 Staff Statement No. 3, supra n. 150. p. 18 154 Staff Statement No. 3, supra n. 150. p. 35 155 Doug Hanchett and Robin Washington, ‘Logan lacks video cameras’, Boston Herald, 29 September

2001. 156 Nick Grimm, ‘Commission report finalised as 9/11 airport video released’, ABC.net.au, 22 July 2004.

Available at http://www.abc.net.au/pm/content/2004/s1159804.htm 157 The video can be viewed here: http://www.whatreallyhappened.com/hijackers_video.html 158 Jay Kolar, ‘What we now know about the alleged 9-11 hijackers’, in The Hidden History of 9-11-2001,

Research in Political Economy, Vol. 23, 3-45, Elsevier Ltd. (2006), pp. 7-10

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camera number. He also pointed out further anomalies, such as the unusually bright lighting (which suggest that the recording was not made in the morning) and the fact that a human operator had manipulated the camera in order to zoom on particular subjects (indicating foreknowledge of those subjects). His conclusion is that this recording was made deliberately and probably at another time than in the morning of 9/11. Adding to the mystery, the released recording does not show any passengers pass through the security checkpoint. Aside from the dubious source of this recording, it does not show who boarded the aircraft but only a handful of ill-recognizable individuals who passed a security checkpoint.

(c) No boarding passes To ensure that all checked-in passengers actually board the aircraft, airline personnel usually tear a stub of the boarding pass and count these stubs. These stubs carry the names of the passengers. The 9/11 Commission Staff report,159 which mentions specifically that Mohammed Atta received a “boarding pass” at Portland airport, does not mention at all boarding passes in connection with flights AA11, AA77, UA175 and UA93, as if such documents did not exist. The Staff report does not explain how the airlines checked who boarded the aircraft. (d) No positive identification of the alleged hijackers’ bodily remains According to the official account, the 19 hijackers died in the crashes at the World Trade Center, the Pentagon and at the crash site near Shanksville, Pennsylvania. Yet, there is no positive proof that they did. There is no indication that a proper chain of custody between the crash sites and the final disposition of bodily remains had been established by the FBI, as required in criminal cases. The 9/11 Commission did not refer to any such documentation. Unidentified officials spoken to by The Times (U.K.) in October 2001 expected that the bodies of the 9/11 suspects would be identified ‘by a process of elimination’160. They did not explain on what grounds they did not envisage a positive identification of these bodies. Chris Kelly, spokesman of the Armed Forces Institute of Pathology (AFIP), where the identification of the victims’ remains from flights AA77 and UA93 took place, said that the authorities were reluctant to consider releasing the hijackers’ bodies: ‘We are not quite sure what will happen to them, we doubt very much we are going to be making an effort to reach family members over there.’161 He did not mention why AFIP could not use comparison DNA samples from known locations in the United States where the alleged hijackers had lived. While the AFIP announced to have positively identified the human remains of all ‘innocent’ passengers and crew from the flights, they did not identify the remains of any individual suspect. Kelly said later: ‘The remains that didn’t match any of the samples were ruled to be the terrorists’.162 Somerset County coroner Wallace Miller said that the “death certificates [for the suspected hijackers] will list each as 'John Doe'”.163

159 Staff Report, supra n. 112 160 Damian Whitworth, ‘Hijackers' bodies set Bush grisly ethical question’, The Times (U.K.), 6 October

2001 161 Ibid. 162 ‘Remains Of Nine Sept. 11 Hijackers Held’, CBS, 17 August 2002. Available at

http://www.cbsnews.com/stories/2002/08/17/attack/main519033.shtml, mirrored at http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=2264&Itemid=107; Tom Gibb, ‘FBI ends site work, says no bomb used’, Post-Gazette News, 25 September 2001. Available at http://www.post-gazette.com/headlines/20010925scene0925p2.asp

163 Tom Gibb, Flight 93 remains yield no evidence, Post-Gazette News, 20 December 2001. Cached at http://www.aldeilis.net/english/index.php?option=com_content&task=view&id=1060&Itemid=107

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As for the remains of the suspects who allegedly flew AA11 and UA175 into the Twin

Towers, a spokeswoman for the New York Medical Examiner’s Office, where the identification of the WTC victims took place, said to have received from the FBI in February 2003 “profiles of all 10 hijackers ...so their remains could be separated from those of victims.” She added: “No names were attached to these profiles. We matched them, and we have matched two of those profiles to remains that we have.”164 No explanation was given where and how the FBI secured the “profiles” of these 10 individuals, why it took so long to hand them for identification and why they could not be identified by name.

(e) Conclusion As shown above, the US authorities have failed to prove that the 19 individuals accused of the mass murder of 9/11 had boarded the aircraft, which they allegedly used to commit the crime. No authenticated, original, passenger lists, bearing their names, have been released; no one is known to have seen them board the aircraft; no video recordings documented their boarding; no boarding pass stub exists to document their boarding; and their bodily remains have not been positively identified. In the months following 9/11, reports appeared in mainstream media that some of the alleged hijackers were actually living in various Arab countries. These reports led to speculation that the identities of some of the hijackers were in doubt. Typical of such reports is an Associated Press dispatch of 3 November 2001, which states: “The FBI released the names and photos of the hijackers in late September. The names were those listed on the planes’ passenger manifests and investigators were certain those were the names the hijackers used when they entered the United States. But questions remained about whether they were the hijackers’ true identities. The FBI has not disclosed which names were in doubt and [FBI Director] Mueller provided no new information on the hijackers’ identities beyond his statement to reporters.” The 9/11 Commission did neither address at all these doubts nor the reports about the “living hijackers”. On September 14, 2001, the